Paul F. deLespinasse: Are we combating discrimination the wrong way?

Racial discrimination is a major problem. But the approach we have taken to fix this problem is itself problematical. 

Slavery and segregation were created by legislation enforced by rigorous government sanctions. Legal reforms were obviously needed, and the first step was to eliminate this legislation. 

In his 1963 "Letter From A Birmingham Jail," Martin Luther King proclaimed that "An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal." 

King was right, because genuine laws must be general rules of action, and rules applying only to people of one race are not general. A general rule must apply to anybody taking the prohibited action. 

A rule requiring only people of color to ride in the back of the bus is clearly not a general one. (And it would make no sense at all to require everybody to ride in the back of the bus. No matter to whom it is applied, this kind of rule is just plain crazy!) 

I differ from Dr. King only in that I don't concede that the unjust codes he referred to rise to the dignity of law at all. They are pseudolaws, not just bad laws. 

The pseudolaws supporting slavery and mandating racial segregation have been repealed or declared unconstitutional. But lingering social attitudes, institutional inertia and continued suffering of descendants of the former slaves called for further major reforms. 

Laws whose goal was to reduce or eliminate racial discrimination were an obvious and legitimate next step. 

A genuine civil rights law whose goal is to combat racial discrimination could have been a requirement that stores and other public facilities accept all would be customers first come, first served. 

The vital parts of the Civil Rights Act of 1964 dealing with open accommodations (in stores, restaurants, hotels, etc.) would have been even more effective if they had been, instead, first come, first served rules. 

But rather than imposing a first come, first served rule, civil rights legislation has tried to make make "discrimination" itself illegal. The problem is that discrimination is not an action. It can be a reason or motivation for an action, but it is not itself an action. And as I indicated already, law must be a rule of action. 

Under current legislation, the act of declining to hire a person of color is not illegal unless the reason for that decision is that the applicant is a person of color. 

The very same action in identical circumstances can thus be either legal or legal, depending on whether a judge, jury or bureaucrat thinks that the motive for the action was illegal. Since motives cannot be observed but must be inferred, or assumed, this gives officials tremendous discretionary power. 

By contrast, although the motive for violating a first come, first served rule would be legally irrelevant, such laws would prevent establishments from engaging in racial discrimination. Since discrimination is not an action, efforts to make it illegal are pseudolaws. 

Paradoxically, our efforts to eliminate racial discrimination have employed the same kind of illegitimate tools that created slavery and racial segregation. 

Formerly, individuals and organizations wishing to enter into voluntary associations with people of another race were "legally" prevented from doing so. This is what segregation did. 

We now try to force people of different races to enter into associations with each other whether they prefer to do so or not. These associations are hardly voluntary ones, since voluntary associations can only be created by mutual consent to associate. 

We should try a third approach: respecting freedom of voluntary association except when limits on this freedom are imposed by genuine laws.

Paul F. deLespinasse is a retired professor of political science and computer science at Adrian College. He can be reached at pdeles@proaxis.com.